Blog

Back in 2021, we discussed the difference between trademark infringement and trademark dilution. Business and trademark owners know that both issues can have a considerable impact on their reputations. However, the main concern when it comes to dilution often lies in determining whether or not it is truly a dilution of a trademark or a parody. In that previous blog post, we addressed the particular case involving Jack Daniels’s trademark whiskey bottle design. This case – and the effect parodies have – remains at the center of this complex matter. ONGOING BATTLE OVER DILUTION WENT TO THE SUPREME COURT This legal battle has gone back and forth over the last few years. Some courts determined that the dog toy shaped like the well-known whiskey bottle is indeed a parody, and therefore the company that created it has First Amendment protections. However, in 2023 the Supreme Court ruled that it is not quite a parody. The Supreme Court determined that the toy reflects the trademark enough that it violates trademark protections and rules. The different opinions on this matter illustrate just how complicated it is. So, what must business owners consider? TAKE A CLOSER LOOK AT DILUTION The definition of trademark dilution is quite broad. The federal Trademark Dilution Revision Act of 2006 does not actually consider the risk of confusion or negative economic impacts – as trademark infringement does. The law defines dilution as the use of a mark that might tarnish the mark itself or the reputation tied to it. In short, this law focuses only on protecting the trademark. It is not necessary to prove that consumers may be confused when it comes to a claim of dilution. This allows businesses to protect their image. After all, a business’s public image is an important factor in gaining and maintaining consumer approval. Any mark that would sully or degrade that image the business worked hard to build could be a considerable concern and risk. DILUTION V. PARODY: A SUBJECTIVE ISSUE Of course, the law also explicitly states that parodying is not dilution. These cases are often quite subjective, as the differing opinions also indicate. This subjectivity can just as easily work in favor of businesses trying to safeguard their intellectual property, as it can against them. Protecting a trademark requires vigilance. However, it is also beneficial to obtain skilled legal counsel in order to effectively protect the brand and business in such subjective situations.

It should be simple: you provide a service, and your customer pays you for that service. Unfortunately, it is not always so simple. Not getting paid for your work can be one of the most frustrating issues, especially for small businesses. It also does not take much for money matters to lead to larger disputes. So, what should small business owners do in these cases? 1. START WITH A REMINDER NOTICE Most sources, including the U.S. Chamber of Commerce, agree that business owners should not begin by escalating the situation. Take time to review and fully understand the circumstances of this individual case. Then, begin with resending the invoice or sending reminders to pay. 2. BE OPEN TO NEGOTIATIONS After sending any reminders – and depending on the response you receive – you should then consider scheduling time for negotiations. As much as obtaining that income is important, you do not want to lose a customer or have this issue impact your business’s reputation. Moving forward with a negotiation can show you are serious about obtaining proper payment, but also understanding a customer’s situation. For example, you can arrange a meeting or a call with the customer to discuss the payment. It is not uncommon for customers and other businesses to face financial troubles, especially in today’s market. If this is the case, you could establish a payment plan that will work for both parties. 3. OBTAIN HELP If there is no response to any reminders or offers to negotiate, then you can and should explore the other options to obtain payment. This could involve working with a collections agency to recover the debt owed. However, it is also critical to speak with a knowledgeable California attorney to ensure you understand your rights, as well as the customer’s rights. 4. REVIEW YOUR PROCEDURES Small businesses new and old work hard to gain customers. You may want to protect the relationships you build with them. However, you must also protect your business. It will often help to take another look at your payment policies. Perhaps you make them stricter, to prevent the risk of non-payment issues. A business attorney can also help craft policies to secure finances and the business’s future.

There are no independently self-driving vehicles on U.S. roads yet. Many transportation companies hope to change that. The auto industry proclaims that self-driving vehicles offer many safety features. Meanwhile, these vehicles can also make business more efficient for the transportation industry. Many companies have been testing self-driving trucks in California for a few years now. However, these tests indicate that the closer companies get to using autonomous vehicles, the more questions they must answer. BUSINESS OWNERS MUST TAKE CARE INTRODUCING NEW TECH Introducing new technology can be exciting for the whole business. It can also give companies an edge in their industry. However, there are several issues business owners must consider when it comes to new technologies like self-driving vehicles. For example: How will it impact short-term and long-term operations? How will company policies need to change? How will companies revise training guidelines? How will they evaluate cybersecurity measures? Accordingly, even if the new technology may present enormous benefits, it is still necessary to assess the risks. One predominant risk to assess is the potential liability. WHO HOLDS LIABILITY WHEN AUTONOMOUS VEHICLES CRASH? Trucking companies already face a unique risk when it comes to auto accidents. If their drivers are involved in an accident, companies inevitably end up dealing with the legal fallout. They must comply with state and federal regulations – and ensure their drivers do as well. Any violations or accusations of negligence could leave trucking companies facing serious liability. Autonomous vehicles will not eradicate that risk. In fact, transportation companies could face a higher risk if self-driving technology malfunctions or causes an accident. COMPANIES MUST PREPARE FOR THE FUTURE Even with extensive testing, there is no way to understand how self-driving technology will impact the future of the transportation industry just yet. However, industry leaders should take steps now to: Understand all the potential risks of implementing this technology Strategize how to manage liability and protect their business Keeping up with the latest technologies is a critical aspect of a business’s success, but the associated risk is a critical factor to assess before implementing new technology.

Running all of the aspects of a trucking company requires great attention to detail. Employers must organize timetables, shipments as well as drivers to ensure they fulfill their contracts and maintain success. On a larger scale, they must also pay close attention to state and federal laws to avoid complex legal matters. A recent case only emphasizes the importance of understanding the nuances of the law. TRUCKING COMPANY ORDERED TO COMPENSATE EMPLOYEE Baker & Associates is not involved in this case, but it is critical that all business owners understand and learn from the details of this recent case. Earlier this year, California company JHOS Logistics and Transportation Inc. terminated an employee when he would not drive a truck he believed exceeded weight restrictions. This situation might seem rather simple and straightforward; however, it was anything but. Terminating an employee always requires care to make sure they do not violate the law. In the JHOS Trucking case, terminating this employee was in direct violation of the Surface Transportation Assistance Act (STAA). The STAA states that employers cannot discharge an employee if they: File a complaint regarding a violation; or Refuse to drive a vehicle if it violates safety standards. Therefore, the Occupational Safety and Health Administration (OSHA) determined that the company violated the law and ordered the company to: Rehire the employee; Repay $190,000 in lost wages; Pay $25,000 in punitive damages; and Cover $5,000 in compensation and attorney fees. OSHA’s order also required the company to train supervisors and managers regarding employee protections to prevent situations like this from occurring in the future. EMPLOYERS MUST TAKE TIME TO UNDERSTAND THE LAW This case illustrates only one of the reasons companies must be consciously aware of employment laws. Additionally, maintaining a thorough understanding of these laws allows business owners and employers to: Prevent risks related to terminating an employee; Protect the business from litigation; and Avoid significant financial consequences. Unfortunately, employers face a high risk of liability under the law in cases like this. They can reduce that risk if they take time to understand the law, but it might be helpful to consult a knowledgeable business attorney before moving forward.

The road can be a dangerous place for anyone – but especially for trucking companies. A majority of their business takes place on the road, therefore auto accidents involving commercial trucks often pose the greatest risk to companies. This is due to the fact that truck accidents often lead companies to face claims of negligence and litigation. According to a recent study, that risk of litigation is only increasing, along with the verdicts against trucking companies. JURIES RULE AGAINST TRUCKING COMPANIES MORE OFTEN THAN NOT The American Transportation Research Institute (ATRI) released a study in June, 2020 evaluating the impact of litigation on trucking companies. The survey determined that: Juries ruled against trucking companies at an increasing rate of 51.7% each year; Plaintiffs, the injured parties, won 97.1% of these cases in California; and The amount of damages juries award injured parties in these verdicts is rising. Essentially, more juries are ruling against trucking companies in accident and liability cases at a considerable rate. This is significant – and worrying – for many trucking companies. TRUCKING COMPANIES MUST UNDERSTAND THIS RISK Most trucking companies, regardless of their size, wish to avoid taking matters to court. Litigation can be costly and damaging to their reputation. However, it is not always possible to avoid litigation when it comes to accident or liability claims. Therefore, trucking companies should be consciously aware of this trend, and how it could affect their: Insurance premiums; Liability; and Defense strategies. It is beneficial for trucking companies to consult a business attorney proactively before they face a legal claim. Then they can take measures to protect their business. HOW CAN COMPANIES REDUCE THE RISK OF LITIGATION? Business owners must ensure they take great care long before they face litigation if they wish to reduce the risk. For example, business owners should review: Hiring, screening and licensing policies for drivers; Training strategies and requirements; and Vehicle inspection policies. Companies should also take great care in choosing who they partner with or contract to drive for them. After all, the steps to prevent truck accidents in the first place are also the steps to reduce the risk of litigation. It is not always possible to avoid risk when most of the business happens on the road, but these are measures that business owners can take to protect the company.

Business owners work hard for what their company has achieved. Everything from the purpose of the business to the carefully cultivated clients is a valued and protected asset for entrepreneurs. Even the logo or branding represents a hard-fought victory full of symbolism, dedication, pride – and perhaps most importantly crucial brand identity and value. Consequently, when another company or individual misappropriates these important assets, either intentionally or not, it can seem like a direct attack on the livelihood of the business. Upon learning of such a misappropriation, the business owner should retain an attorney to write an impactful cease-and-desist letter to the offending party identifying the unlawful conduct and demanding that they immediately stop. CEASE-AND-DESIST LETTER BASICS There is an art to writing a cease-and-desist letter. Too strong, and it may incite resistance which may result in having to file a lawsuit to enforce your rights. Too weak and it will likely be ignored. Firmly encouraging compliance and cooperation rather than seeking punitive remediation if often preferred. For example, in 2012, the popular whiskey brand Jack Daniel’s sent a cease-and-desist letter to an author who used a likeness of their whiskey label as a cover for his book. Instead of immediately threatening legal action, the liquor mogul politely asked him to change the cover for the next printing. They even offered to help pay for a redesign. The author immediately acquiesced, declining the extra funds and making the changes. LEGAL COUNSEL PROVIDES A PROFESSIONAL EYE The Jack Daniel’s approach may not work for every company. Those looking for a more professional voice can hire a local lawyer familiar with intellectual property law. An attorney can draft a professional letter that lays out legal claims clearly and concisely.

When you hire someone new, it can be difficult to know how things will work out. Some employees are fabulous – hardworking, smart and get along well with your team. Others, not so much all the time. Maybe they aren’t so great at following rules and directions, or they don’t mesh well with your other employees. As a business owner, it’s important that you know how to deal with difficult employees while also protecting yourself and your business. Here are some tips to bring into your next employee situation: WRITE DOWN EVERYTHING It’s so important to make sure that you get documentation of problems you have with an employee and how you deal with it. Keep all emails or texts and write down key points from any conversations that you have with them about the issues. Document all incidents and if the issues persist. Even if you think the problem will be solved with a simple talk, having everything documented will be extremely helpful if things don’t get resolved or escalate. GO BACK TO YOUR COMPANY POLICIES When you started your business, you probably made policies and specific processes to help in instances like this. If you’re having an issue with an employee, lean on those policies. You can always kindly remind your employee of the agreement that they made upon getting hired. If things continue and you think disciplinary action may need to be taken, be sure to follow your stated processes carefully to protect your company. OFFER CLEAR AND CONSTRUCTIVE FEEDBACK It can be easy to talk about what an employee is doing wrong, but a good leader is able to help employees correct their behavior. Help them understand what to do differently and how they can improve. KEEP IT PROFESSIONAL Difficult employees can be frustrating to deal with. It’s easy to get overwhelmed by bad behavior, but it’s important to keep your own actions professional. Try to look at the situation calmly and objectively so that you can best understand what is going on and how to resolve it. Don’t talk about the issue with anyone who doesn’t need to be involved. Talking about employees with other employees is one of the quickest ways to escalate the situation. Don’t let a situation with a difficult employee have a negative impact on your business. If the situation persists, seek legal advice to ensure that you are keeping your company safe.

Construction contractors face professional challenges every day. Between client relations, workers, suppliers, vendors, building inspectors and a different workplace with every new job, contractors must satisfy a wide range of demands at once. To complicate matters, contractors must deal with frequent litigation over contract disputes or errors. Thankfully, many states in the U.S. attempt to reduce the volume of these lawsuits with limiting statutes. Among these protections is California’s Right to Cure statute. CALIFORNIA’S RIGHT TO REPAIR STATUTE Many states in the U.S. support a Right to Cure statute, including California. In 2002, after an adverse decision by the California Supreme Court denying homeowners the right to sue for construction defects that had not yet caused actual damage to other property or parts of a home, the California General Assembly adopted the “Right to Repair Act” (Civil Code §§ 895 – 945.5), often referred to as SB 800. When a client finds a defect or error in a contractor’s work, they must inform the contractor before filing a lawsuit. The client must allow the contractor to inspect the error and perform repairs. Sometimes though, the error might not be easily repaired. If the contractor is unable to fix the defect, they can offer alternative solutions for the client. These can include covering the cost of repairs through another company or contractor or even a cash credit. If all else fails, the client may advance their claim to the courts for a legal solution. These statutes are designed to ease court caseloads by precluding certain lawsuits and allowing parties to resolve disputes before taking legal action. LEGAL PROTECTIONS TO SAVE TIME AND MONEY Contractors with questions about Right to Cure statutes can find answers with a local lawyer familiar with construction law. An attorney can navigate legal statutes, help draft comprehensive contracts with extensive protections and assess any legal claims.

When a former employee misappropriates your company’s secrets in violation of their non-compete agreement with your company, it may feel like a punch in the gut and you may not know how to respond. WHAT DO NON-COMPETE AGREEMENTS PROTECT? Non-compete agreements protect a variety of business interests. They prevent employees from working for a competitor, or providing them information, within a certain geographical area and/or period of time after leaving your company. They may also prohibit employees from using company trade secrets if they decide to start their own business. By law, California does not enforce these agreements in most circumstances. But your company – and many others in the state – may use a properly crafted non-compete agreement, in conjunction with a non-disclosure agreement, to discourage the misappropriation of your business information. WILL EMPLOYEES FACE CONSEQUENCES? You may have concerns that a former employee will use or reveal your company’s trade secrets. California does not recognize inevitable disclosure doctrine. This doctrine assumes an employee would use your secrets in their new role and enjoins them from doing so. Yet, your company can receive injunctive relief if the employee has threatened to appropriate your secrets. A court-ordered motion will stop them from acting on their threats. When your former employee uses your company’s secrets for personal or business advantage, they have committed theft. In this case, you can file a lawsuit against them for stealing your information. Understanding the difference between non-compete agreements and non-disclosure agreements, and how they can be applied in California, will help you to implement the appropriate, enforceable safeguards to protect your business secrets.

Your company likely does its best to compensate employees in a fair and timely manner. Yet on occasion, a disgruntled employee might claim you violated wage and hour regulations. They may try pursuing a settlement, and you may worry that it will hurt your business’ reputation and finances. While your company may have made wage and hour mistakes, it’s crucial to protect it against employees seeking damages. Following these suggestions can help you do so. Follow California’s wage and hour laws California’s minimum wage will increase to $15 per hour in 2022. Currently, it sits at $12 an hour for businesses with 25 or less employees, and $13 per hour for those with 26 or more. The state and country’s fluctuating wage standards may confuse workers. But if you hire an employee at a pay rate that’s now lower than the current minimum wage, you must raise their pay to meet state standards. California’s overtime statutes decree that employees who work between eight and 12 hours in a day will receive one-and-a-half times their hourly pay. And employees who work over 12 hours in a day can receive double their hourly rate of pay. This rate also applies to employees who have worked over eight hours in a row on seven consecutive days. Some employees are exempt from this law, and it’s important to know if your employee’s work falls under this category. Keep detailed employee and pay records Make sure your company has comprehensive employee and pay records on hand. Employee records can help you identify their pay rate, pay changes and work schedule. And pay records track the number of hours the employee worked, any overtime they worked and the dates they received their paychecks. While auditing these records may help you find the mistakes your employee alleged, doing so may also dispel their claim. Wage and hour violations are serious matters. But by following California’s wage and hour laws and keeping proper records, you can protect your business against them. If your company faces a wage and hour suit, working with a legal professional can help you fight it.

Have you, as Summoner, been able to guide your Champion to destroy a Nexus or two? If you are one of the estimated 100 million active League of Legends players world with League of Legends, it is likely that you fully understand how elusive victory can be in the online battle arena. Those unfamiliar with the popular streaming game might not understand its terminology, but will regardless understand the stakes in intellectual property litigation brought by League of Legends developer Riot Games. The Beverly Hills company has filed a claim against a far less well-known esports developer called Riot Squad. In its lawsuit, California’s Riot Games claims that Chicago’s Riot Squad “hopes and intends that by its use of the Riot brand name, consumers will mistakenly believe that its esports organization is in some manner associated with, sponsored or endorsed by, or otherwise affiliated with Riot and its hugely popular products and services.” It should be noted that Riot Games has secured trademark protections for “Riot” and “Riot Games” when the terms are used in connection with esports and video games, the firm said. Riot Game has asked the U.S. District Court in the Central District of California’s Western Division to stop Riot Squad from using its trademarked “Riot” terms, award damages and require the fledgling firm to “deliver up for destruction” all products and materials using the terms. A news report on the dispute noted that Riot Squad does not own a League of Legends team. Rioters around the world are getting ready for the upcoming 10th anniversary of League of Legends with a day of streamed activities. Individuals and companies that need to protect their intellectual property can enforce their IP rights with the help of an attorney experienced in protecting client interests in intellectual property disputes.

Holidays – particularly the year-end Holidays, are supposed to be a time for relaxing and disconnecting. However, in the business world, that doesn’t always happen. Between the end-of-year demands and the stress of trying to accommodate employee holiday needs and wishes, it can be a lot for employers to manage. However, there are some basic steps every employer can take to minimize the disruption and conflict that can arise during this time of year. Revisit holiday pay and hour expectations Do you give your employees the New Year’s holidays off? Do you pay them for certain days, or offer extra pay for anyone who works on Christmas? Under California law, there is no requirement that businesses close or provide extra compensation to workers on either secular or non-secular holidays. However, many employers establish policies that provide such benefits to employees. Review your company’s policies and make sure you make your employees aware of the policies. Consider hiring and firing decisions carefully The need for workers can change drastically during the year-end holidays. Be cautious when it comes to hiring seasonal workers or terminating employees. Such decisions have financial and personal ramifications, and a business owner can face legal complaints if these processes are not in line with state or federal laws. Reinforce your technology policies As noted in this article, roughly 56 percent of Beverly Hills employees plan to shop online at least a few times a week during work hours. This is particularly true during the year-end Holidays. If you have strict policies on personal use of a work computer that prohibits employees from shopping online, make sure you remind your workers of this. And if you do allow some amount of such activities on the clock, discuss with employees what is reasonable and how to avoid exposing the company to security breaches when shopping online. Respect your employees’ rights During any State, Federal or religious holidays, be respectful your employees’ rights regarding discrimination and leave. This means addressing and preventing acts of harassment stemming from a person’s gender or religion as well as refraining from any retaliatory acts against people who take time off for medical or family reasons. Reviewing these policies with employees during this time of year can go a long way in preventing disputes that could otherwise arise.